N.B. Court affirms exclusive jurisdiction of Commission in authorizing medical marijuana use

Court found that the tribunal’s exercise of discretion interfered with the Commission's jurisdiction

N.B. Court affirms exclusive jurisdiction of Commission in authorizing medical marijuana use

The New Brunswick Court of Appeal has ruled that the Workers’ Compensation Appeals Tribunal interfered with the exclusive jurisdiction of the Workplace Health, Safety and Compensation Commission in determining whether to allow a worker suffering from PTSD to use medical marijuana.

In Workplace Health, Safety and Compensation Commission v. Boudreau, the Court found that the chairperson of the Tribunal committed an error of law in interpreting “harm reduction” under the medical marijuana policy.

Kelly Boudreau worked as a correctional officer. He was diagnosed with post-traumatic stress disorder (PTSD), panic disorder, agoraphobia and major depressive disorder as a result of certain traumatic incidents he encountered during his 10-year employment. Due to the severity of his symptoms, he sought treatment through the use of medical marijuana.

Boudreau applied for funding to cover the cost of the cannabis. But the psychiatrist appointed by the Commission recommended decreasing Boudreau’s use of the drug, with the goal of eventually stopping it altogether because of the significant health risks associated with sustained use. As a result of the psychiatrist’s advice, the Commission denied funding for the cost of Boudreau’s medical marijuana treatment.

Boudreau appealed the decision to the Tribunal, which allowed the funding based on the chairperson’s interpretation of “harm reduction” under the policy on Cannabis (Marijuana) for Medical Purposes. Clause 6 of the policy states that, “in cases of harm reduction, continued approval for medicinal cannabis will be contingent upon… sustained reduction in the amount of other substances with risk of dependency such as benzodiazepines.”

According to the chairperson of the Tribunal, “harm reduction” applies in situations “where one form of treatment would do more harm than good” and that “there is no greater ‘harm’ than death.” Boudreau testified that marijuana saved his life. However, New Brunswick Court of Appeal found that the chairperson committed an error of law.

Under s. 41(3) of the Workers’ Compensation Act, “all questions as to the necessity, character and sufficiency of any medical aid…shall be determined by the Commission in its discretion.”

According to the Court, the policy itself is an exercise of the Commission’s exclusive jurisdiction in determining the instances when the use of medical marijuana is authorized. But the chairperson, in giving her interpretation of harm reduction, substituted the Commission’s exercise of discretion for her own.

The policy limits harm reduction to helping reduce a worker’s dependence on opioids and benzodiazepines. The implication of this, according to the Court, is the policy assumes dependency on another drug in implementing a harm reduction strategy. Boudreau, who was not taking any other drug, does not fall within the coverage of the policy.

The Court found that the chairperson, in interpreting the policy, relied heavily on medical literature and Boudreau’s opinion that medical marijuana saved his life. She disregarded the opinion of the Commission-appointed psychiatrist who closely examined Boudreau. In effect, the court ruled that the chairperson relied on hearsay and irrelevant evidence.

The Court warned that while the rules of evidence may be flexible in matters heard by the Tribunal, chairpersons should still “tread carefully when dealing with medical literature, particularly where the evidence provided by experts with respect to a worker’s particular case conflicts with the literature.”

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